NORTH & NORTH

FAMILY COURT OF AUSTRALIA

NORTH & NORTH

[2010] FamCA 306

FAMILY LAW – CHILDREN - Wife satisfies court about family violence – rebuttal of presumption – views of the child – Parties agree an order for equal shared parental responsibility and therefore need to consider equal time and substantial significant time – Time defined.
FAMILY LAW – PROPERTY SETTLEMENT – Property matters considered based on greater income contribution by wife and her greater post-separation parenting role
FAMILY LAW – COSTS – Costs for Independent Children’s Lawyer granted

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Collu & Rinaldo (2010) FamCAFC 53
Eddington and Eddington (No 2) (2007) FLC 93-349
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143

APPLICANT:

Mr North

RESPONDENT:

Ms North

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

10337

2008

DATE DELIVERED:

21 April 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

18, 19, 23 MARCH 2010; 9, 12, 13, 14 APRIL 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS STEWART

SOLICITOR FOR THE APPLICANT:

KENNEDY WISEWOULDS

COUNSEL FOR THE RESPONDENT:

MR WEIL

SOLICITOR FOR THE RESPONDENT:

VERNON DA GAMA & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MRS HOOPER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

MACGREGOR

Orders

That all existing parenting orders are discharged.
That the husband and the wife have equal shared parental responsibility of the child S born … February 1999.
That save as otherwise specifically set out in these orders, the child live with the wife.
Until the week commencing with the fourth term of the 2010 school year, the child spend time with the husband as follows:
(a)on each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday morning commencing on the first Friday after the date of these orders; and
(b)on each Thursday night from the conclusion of school until 7.30pm.
That from the first Thursday after the commencement of the Term 4 in the 2010 school year and thereafter, the child spend time with the husband from the conclusion of school on Thursday until the commencement of school on the following Monday morning.
That unless the parties otherwise agree, the child spend time with the husband for the second half of each school term holidays.
Unless the parties otherwise agree, the child spend time with the husband during all long summer school holidays on a week-about arrangement and for that purpose, the long summer holidays shall be deemed to commence at 10.00am on the day after school finished for the year until 10.00am on the day prior to the school year resuming and for the purposes of this order, the wife shall have the first week of the school holidays.
That the child spend time with the husband from 4.00pm on 24 December 2010 until 4.00pm on 25 December 2010 and for a similar period in each alternate year thereafter.
That the child spend time with the husband from 4.00pm on 25 December 2011 until 4.00pm on 26 December 2011 and for a similar period in each alternate year thereafter.
That paragraphs 4 and 5 of these orders are suspended during all school term holidays and long summer holidays but shall resume immediately school resumes as if they had not been suspended.
That unless the orders provide for the child to be collected and returned at school, for the purposes of these orders, the husband collect the child from outside of the wife’s residence and return her there.
That each party keep the other advised at all times of their residential address, telephone number and email address and forthwith advise the other party of any change as it occurs.
That each party be at liberty to obtain school reports, newsletters and similar documents relating to the child’s attendance at any school.
That subject to any order of the school principal to the contrary, each party shall be at liberty to attend any event or function at which parents of a child at that school are entitled and encouraged to attend.
That each party promptly advice the other of any serious illness or injury affecting the child whilst she is in that party’s care.
That each party advise the other of the details of any medical practitioner, hospital or health professional attended upon by the child whilst the child is in the care of that party and each party shall be at liberty to communicate with such medical practitioner, hospital or health professional for the purposes of obtain details regarding the child’s health.

AND THE COURT NOTES:
A.It is specifically noted that there are no orders in respect of Mother’s Day, Father’s Day, birthdays, Easter or overseas travel pursuant to these orders in the expectation that the parties will negotiate those events and reach agreement failing which they shall attend upon either a mediator or a family relationship centre.

That by 4.00pm on 21 June 2010, the wife pay to the husband $430,000.
That the wife retain and the husband relinquish any interest in the following assets:
(a)B property;
(b)M property;
(c)The MLC investments;
(d)The wife’s car;
(e)The wife’s shares;
(f)The wife’s savings;
(g)The contents of the home at B.
That the husband retain and the wife relinquish any interest in the following assets:
(a)H property;
(b)The husband’s savings;
(c)The husband’s car;
(d)The husband’s shares
That to the extent that it is necessary to do so, save as to the home at B, the husband forthwith transfer to the wife all of his interest in:
(a)B property;
(b)The MLC investments;
(d)The wife’s car.
That to the extent that it is necessary to do so, the wife forthwith transfer to the husband all of her interest in the property at H.
That for the purposes of any transfers referred to in these orders, the party receiving the interest in the property shall be responsible for all costs and expenses associated with such transfer.
That if the wife fails to make the payment referred to in paragraph 17 by the date referred to, the real property at B be placed on the market for sale forthwith by auction and upon the settlement of the sale, the proceeds be paid as follows:
(a)first, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage encumbering that property;
(c)thirdly, to pay to the husband $430,000 together with interest as calculated according to the Family Law Rules 2004; and
(d)the balance to the wife.
That for the purposes of these orders, the wife shall be forthwith responsible for and make all payments in respect of any mortgage encumbering the property at B, the property at M and the encumbrance affecting her motor car.
That for the purposes of these orders, the husband shall be forthwith responsible for and make all payments in respect of any mortgage encumbering the property at H.
That pursuant to s 90MT(1)(a) of the Act, the sum of $105,000 is fixed as the base amount from the wife’s member account to be paid to the member account of the husband and the trustee of the parties’ self-managed superannuation fund shall make the appropriate calculation in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 reducing the wife’s member account by the base amount and increasing the husband’s member account by the base amount.
That the foregoing order shall be binding upon the trustees of the said self-managed superannuation fund and have effect from the date of these orders.
That the husband and the wife as trustees of the said self-managed superannuation fund forthwith do all acts and things necessary and sign any necessary document to give effect to these orders.
That upon the trustees giving effect to the foregoing order, the husband do all acts and things and sign all such documents as may be required to roll out his entitlements within the self-managed superannuation fund into another superannuation fund of his own choosing and thereafter provide to the wife at his expense, a withdrawal of any caveat lodged by him over and in relation to the property at T.
That upon the rolling out of the husband’s said interest in the self-managed superannuation fund, the husband do all acts and things and sign all such documents as may give effect to his resignation as a member and trustee of the said fund including to do all such acts and things as may be requested by the wife at her expense, to enable her to become the sole trustee and member of the said fund.
That each party be otherwise solely entitled to the exclusion of the other of all other property in their possession as at the date of these orders. Any joint tenancy of the parties in any real or personal estate is especially severed by these orders.
Save as to any application in relation to costs, all outstanding applications between the parties are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That within 90 days of the date of these orders, each of the husband and the wife pay to Victoria Legal Aid the sum of $4585.

IT IS NOTED that publication of this judgment under the pseudonym North & North is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10337 of 2008

MR NORTH

Applicant

And

MS NORTH

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

There are two disputed issues in this case between Mr North (“the husband”) and Ms North (“the wife”). They are:
(a)how much time should be spent by the parties’ daughter S with each parent; and
(b)how to divide the parties’ assets.
Each of these issues is complicated by disagreement between the parties as to who is telling the truth. These reasons therefore deal with the credibility of the witnesses as well as those issues.

Background

Both parties were born in India.
The husband is a 47 year old information technology consultant who earns about $120,000 per annum.
The wife is a 42 year old medical professional whose income from her practice as a professional is over $200,000 per annum. She has an ability to reduce her taxation burden because of a number of commercial arrangements. Her overall income position which includes the benefit of rental from commercial properties puts her in a stronger financial position than that of the husband. To some extent that will alter with the orders I propose to make.
The husband came to Australia in 1992.
The parties began living together at their marriage which took place in India in 1994. Following the marriage, both parties returned to and have since lived in, Australia. Both are Australian citizens.
When the wife came to Australia, she was already a qualified medical professional but her qualifications were not recognised in Australia and over the ensuing three years, she was required to study to gain acceptance within the medical profession. She did not have to refrain from working however during that period and I find that she began practicing her profession just under two years after she arrived in Australia.
S is the only child of the parties. She was born in February 1999 and is therefore 11 years of age. She is in Grade 6 of a private school.
The parties sadly lost a child stillborn in 1998.
The marriage relationship formally ended in October 2008 as a result of an incident to which I shall refer in some detail. That incident culminated in an intervention order being made and the husband being later excluded from the matrimonial home.
After separation, litigation began quickly and orders were made on 17 November 2008 by consent of both parties that the child be placed on the Airport Watch List precluding her from leaving Australia.
There was considerable angst as a result of the incident that gave rise to the separation and consequent intervention order and that contributed to orders being made by this Court for the husband to have some time with the child but very much on a supervised basis initially. Such was the concern that on 23 January 2009, orders were made that the initial supervision order be continued but that the parties attend upon Dr E for a psychiatric evaluation. The evidence of Dr E was admitted by both parties and not challenged.
On 16 June 2009, further orders were made under which the supervision of the husband’s time with the child was removed in addition to which, it was extended to overnight.
The current orders of the Court are that the child spend time with her father on each alternate weekend from 8.45am on the Saturday until 6.00pm on the Sunday.
The first significant block period of time between the husband and the child took place in the 2009-2010 Christmas holidays and in court on 19 March 2010, the parties agreed to a block period during the first term holidays of 2010.

The position of the parties about parenting

The husband’s position was that there should be equal shared time including in respect of holidays and a sharing of the various special days.
The wife’s position was that the existing regime should continue so that the child would spend each alternate weekend with her father. In cross-examination, the wife said that she adopted that which Mr P recommended but would “prefer” that to be not overnight on a Thursday. Mr P’s recommendation was that the child spend time with her father on each alternate weekend from Friday at the conclusion of school until the commencement of school on the following morning and one night overnight in the alternate week. Thus I take to be the wife’s position to be alternate weekends and a dinner period on Thursdays. It is interesting to note that despite accepting Mr P’s views since the end of 2009, no such increase has been implemented.
Mr P gave evidence on 12 April 2010. He suggested that the argument between the parents was about the amount of time. He said that the child was aware of the conflict and tension between her parents. His preferred position would be for time to be longer rather than fragmented as was set out in his report. As such, his preferred position was a block period of four days from the conclusion of school on Thursday through to the conclusion of school on the following Monday morning.
The Court made an order in 2008 for the appointment of an Independent Children’s Lawyer. Mrs Hooper of counsel appeared on behalf of the Independent Children’s Lawyer. Mrs Hooper said the Independent Children’s Lawyer had tried to implement Mr P’s recommendations but both would not accept them.
At the first day of the hearing which began on 10 December 2009, the Independent Children’s Lawyer reserved her position about parenting orders but said she could not see an equal time arrangement.
Nothing changed in the approach of the Independent Children’s Lawyer.
In final address, Mrs Hooper said that the orders should be in line with the recommendations of Mr P. She said that it was a matter for the Court to decide whether the time the child spent with her father was in two parts on a fortnightly basis or simply one block of four days. Either way, the Independent Children’s Lawyer’s position was that the husband should spend four days per fortnight with the child. The Independent Children’s Lawyer said there was no justification for a week-about arrangement. I agree.

Professional Evidence

I had the benefit of two reports from Mr P and his oral evidence. As I have indicated, both parties agreed that the affidavit of Dr E filed 22 April 2009 should be admitted into evidence and that was not the subject of challenge.
The evidence of the experts in this case was helpful.

Position of the parties about property

The husband wanted to retain a property at H which the parties had acquired as an investment property during the relationship. It was described as a modest but liveable property and not very far from the home at B where the wife and the child live.
The husband also sought a superannuation splitting order with a base amount of approximately $165,400 to be paid to a fund of his choice from the self-management superannuation fund.
The various orders proposed by the husband amounted to an equal division of the assets.
The wife did not file a summary of argument but in an amended response to the husband’s application which she filed on 2 December 2009, she sought an overall settlement of 70 per cent to her and 30 per cent to the husband. When she gave evidence, her counsel presented an aide memoire which portrayed her position as 60 per cent of the non-superannuation assets and 65 per cent of the superannuation entitlements of the parties.

The separation

It was common ground that the final separation occurred in October 2008 when the police attended at the matrimonial home. The husband was then taken to hospital for what was described as a psychiatric evaluation. He was collected from the hospital by a friend who returned him to the home.
This incident occurred on 13 October 2008 and the tension continued between the parties over the ensuing days. During those days, I find that the husband did act aggressively and in a controlling way towards the wife as a consequence of which she sought assistance from the Victoria Police who obtained an interim intervention order on 18 October 2008. The husband was then escorted by the police from the home.
The interim intervention order was returnable in the Magistrates Court on 20 October 2008 and it included the child as an aggrieved family member along with the wife. The husband attended the hearing and agreed to the order being made for a period of approximately three weeks. On the return date, the order was extended for two months and again the husband consented to the extension.
The wife’s view of the separation was significantly different to that of the husband. She said the parties separated under one roof a number of years prior to 2008 and had slept in different rooms. She said they had gone away on holidays together but the relationship was a perfunctory one. The husband on the other hand said that the separation in two different rooms occurred as a matter of convenience and that life went on as normal with family activities, holidays as well as sexual relations. For reasons which follow, I accept the wife’s version of that.

The parties giving evidence

The husband presented as a man insistent upon the whole story being told because otherwise the truth would not come out. He maintained not only that he was being truthful but that the wife was lying and prepared to manufacture situational evidence to his detriment. His dogmatic position was that even if there had been “issues” in the marriage, his 18 months absence from the relationship had altered the conflictual dynamic. Sadly, because of my finding about the most critical incident in the relationship, I do not accept the husband as a truthful witness. He relied upon a disarmingly honest witness whose evidence I mostly accept. That evidence significantly contradicts that of the husband.
Despite her diminutive size and initial apparent reservedness, the wife was a loquacious and evasive witness. That does not mean that I do not accept her evidence. But there were three matters about which her evidence was very unsatisfactory.
The first unsatisfactory situation related to her evidence about her taxable income. It behoves professionals to ensure not just that their professional skills are properly engaged but also that the material relied upon by clients is understood. It is the clients who have to answer questions. In this case, the wife swore two financial statements in early 2009 and a specific trial affidavit disclosing very important financial information. It was easily demonstrated that the evidence was palpably wrong. Whilst initially defensive because she relied upon what she was advised, it became clear that the wife had little knowledge or understanding of “figures” or the taxable situation on her income. Counsel for the husband did not cross-examine the wife on the important paragraphs in the financial statements which are the precursors to leading the financial information. I raise this subject because of its importance and the need for professional advisers to be very cautious. Each of the paragraphs refers to an acknowledgement of an obligation to make a full and frank disclosure but also that the information which is within a deponent’s personal knowledge is true. The affidavit goes on to refer to the fact that information outside of that is given to the best of the witness’ knowledge, information and belief. It is totally inappropriate for a witness to rely upon an accountant without understanding how the figures are calculated and then resort to the fact that the evidence was true to the best of their belief.

The accountant for the wife to whom I shall refer later gave evidence about two matters. The first related to the draft tax return to which I have just referred. The wife’s advisers did little to ensure the accuracy of the financial matters in circumstances where they knew or should have known that the wife was relying upon those figures and had little or no experience in dealing with them. That is particularly so in circumstances where the accountant had predominantly dealt with the husband and also knew the parties to some extent, personally.
The wife’s presentation of the evidence about her income position was careless and it was no doubt embarrassing for her to have to admit the evidence was “an error”. Importantly, I am satisfied that the information did not mislead the husband although it caused him inconvenience. That inconvenience arose because of two things. First, the husband had been pursuing information from the wife and the wife had been unresponsive. In her cross-examination, the wife said that she had given her professional advisers all of the documents about which she had been requested. If so, there was clearly a communication breakdown somewhere but had that issue been properly fulfilled, the “errors” may have been avoided. Secondly, a significant amount of cross-examination time was spent trying to get to the bottom of just exactly what the figures were. That time was wasted. Importantly, I am satisfied that the information did not mislead the husband but that the “errors” should have been obvious to the wife and her advisors.
A second unsatisfactory matter related to the wife having prepaid $70,000 of her tax. Her evidence was that she was advised to do that and the money was paid from savings that the parties had accrued at the time of separation. The wife said that it was the accountant who gave her that advice. He could not recall advising her to do so. His demeanour of surprise supports the finding that it was not something that he would have done. The wife was adamant that she had tax obligations and was advised to pay in advance. That evidence was given in the midst of cross-examination of the wife about other inaccuracies relating to financial matters to which I have earlier referred. I do not accept the wife’s explanation about the prepayment of the tax. I do not accept that she planned the exercise to mislead the Court or to deceive the husband because that would not be something I consider she would have thought about. This was an exercise in which she followed advice. Who gave that advice is not apparent on the evidence because of my finding about her accountant’s evidence. Just what the purpose was eludes me because on the basis of discovery, it would have been found. What was very unsatisfactory was the reticence to provide documents about the prepayment of tax. Again, the wife’s evidence was that that was nothing to do with her because she gave whatever documents were required of her. The issue is mystifying but in any event, the evidence is that the money was in existence at separation and therefore the prepayment of tax should be added back into the pool because it had nothing to do with the husband.
A third matter related to the vagueness of the wife’s affidavit about issues of family violence and again, when challenged in cross-examination, she was defensive saying that the information was in her affidavits. It clearly was not and the best she could do was point to broad generalisations that were unparticularised. Her attempts to expand on the factual issues created a dilemma because none of that had been put to the husband when he was cross-examined. Again, my concern related to the advisers rather than the wife because lawyers have the responsibility not of simply repeating the story given by a client but rather to lead admissible evidence. Whilst Division 12A of the Family Law Act 1975 (Cth) (“the Act”) has relaxed the technical aspects of the presentation and testing of evidence, ss 55 and 56 of the Evidence Act 1995 (Cth) still require evidence to be relevant to the extent if accepted, it could rationally affect the assessment of the probability of the existence of a fact in issue. In this case, there was a significant dispute about family violence. Broad generalisations which have no particulars are not only unhelpful, they are inadmissible.
Family violence in this community is acknowledged as a serious problem. This Court recognizes the dilemma and treats family violence seriously. It creates a power imbalance and fear. It causes enormous psychological and emotional problems for children. The Act requires courts to look at the inter-relationship of family violence and parenting responsibility when making parenting orders. For the courts to treat family violence seriously, so must the parties and more importantly, their advisers. There has been media commentary about victims of family violence being frightened to raise such issues for fear of being disbelieved and facing mandatory costs orders. That may be happening but it is not readily apparent. What is abundantly clear is that details of serious incidents are brushed aside for expediency sake to give broad generalizations. In this case, that is what occurred and I accept the wife’s puzzlement when asked why she had not put many things in her affidavit. It is important that courts be given precise details where they are known not only so that a determination can be made about the extent of the family violence but also the veracity of witnesses. To the extent that witnesses may be put off by professionals warning them about raising contested facts, the legislature needs to revisit s 117AB.
I am satisfied that I have sufficient other evidence in this case to determine the matter of the disputed relationship between the parties albeit that considerable detail may be lacking. I am also satisfied that the wife could not be accused of recent invention. Counsel for the husband, no doubt on instructions, put to the wife that she had attended doctors for the purposes of creating a record for future possible proceedings. I reject that. In doing so, I accept the wife did attend the doctors as I shall set out below and that she had genuine concerns at that time.
In so far as there is conflict in the evidence between the husband and the wife about matters that have a material bearing on the two issues in dispute, I accept the wife’s version.
The husband maintained that the historical matters should not be determinative of the time each parent spent with the child. Unfortunately, he was wrong. Amongst many responsibilities and attributes of parenting, two feature prominently in this case. First, to ensure S enjoys a secure childhood without exposure to conflict between her parents, in an environment where the husband wanted the Court to order an equal sharing of time as well as the avoidance of confusion over which parent was undertaking what parenting task, there needs to be a modicum of communication. Secondly, so that S enjoys consistency of parenting which leads to common approach as to discipline and routine, her parents would have to be able to agree on basic principles of parenting. Whilst different parenting styles add to the rich tapestry of things children learn and develop by, disagreement and lack of willingness to accommodate another parent’s views, adds to confusion for a child and heightens the prospect of that child not communicating openly and freely for fear of creating problems and upsetting the other parent.
The husband said that regardless of what had historically occurred, he was willing to communicate with and share responsibility with, the wife. He conceded that the wife rebuffed his attempts but felt that in time, those difficulties would be overcome. Sadly, my very strong impression is the opposite.
In an environment where the husband has accused the wife of being a liar only to be found to have been untruthful himself, I am left with little confidence that he would respect the wife’s views about anything. To add to that difficulty is the fact that there are strong and closely-knit community connections here in which the husband brought along witnesses who have unwittingly sided with him. That cannot be conducive to good relations for the wife within that community despite the fact that the majority of the witnesses thought her to be a good parent. The witnesses thought that counselling should be undertaken but that was a view borne out of ignorance of the dilemma that the wife faced concerning the conflict with the husband.
I find therefore that there is little prospect that S can benefit from having an equal shared time with her parents. I find it would not be in her best interest because her parents cannot communicate at any productive level necessary for her future secure development. To support that finding, the evidence I heard is set out below.

The evidence of the husband and the wife

The 2002 and 2003 incidents

In 2002, the wife ran away from the home with the child to the home of her father and sister. She was there for two weeks. That separation concluded according to the wife when the husband and his friend Mr R arrived and said that she was to return home failing which, he was going to the police. She said that the husband said that her father would go to gaol for allowing her to stay. She said she believed the husband and returned to the home. The husband denied any pressure and Mr R did not recall any of the statements made by the wife but in any event was not sure about the entirety of the conversation because of where it occurred.
The 2002 incident was put to the husband and he confirmed that the wife was away for two weeks. As to why the wife left, he said she had an unpredictable disposition but she never gave him a real reason for her departure. There was considerable cross-examination about what brought about the wife’s return to the home. Having regard to the evidence of Mr R and the fact that the wife returned to stay for a number of years before concluding the marriage, it matters little. The important thing however was that the wife saw fit to leave in the first instant. It was clear therefore that the relationship was volatile by 2002.
A similar situation occurred in 2003 according to the wife but the husband was vague about dates and the wife’s suggestion that she went to her sister was something that did not “ring a bell” with him. By his own concession, by this time, there were difficulties in the marriage but in his view, it had not broken down. Despite the fact that he could not remember what I would have thought to be a significant and disturbing event in his marriage, he said there was “a good chance it didn’t happen”.
In 2002 and again in 2004, according to the wife’s medical records, she complained about the husband’s behaviour. The truth of the content of the complaints matters very little but the fact that the complaints were made adds weight to the wife’s evidence that there was considerable conflict in the marriage such as to trouble her enough to complain to doctors. There was no other plausible explanation for the wife’s attendances on the doctors.

The incidents in 2006

During the month of January 2006, the wife said she attempted to leave the home during one of the husband’s “tirades”. She said that he threatened to kill himself if she left and he kicked her and forced her back into the house. She said on an occasion in the month of February 2006, she attempted to escape in the car but he dragged her back into the house. She said that he threatened that if she would ever leave him again, he would ring the police, drag her through the court, ruin her career and put posters outside her workplace and make complaints against her employer.
The husband’s response to this period was that he could not remember yelling at the wife or threatening to kill himself. He insisted that he had never kicked the wife during the marriage. When the events as described by the wife were put to him, the husband said they were untrue. The wife’s sister however corroborated that sort of behaviour even if it was much earlier. To her affidavit, the wife annexed a letter dated 2 October 2006. Admittedly, this purported to be written eight months after the January incident as an indication of what occurred when the husband “calmed down”. In the letter, the following appeared:
I am sorry I hit you. I promise it will never happen again.
The letter was signed with the husband’s first name and underneath that a signature also appears.
When asked about the letter, the husband said he could not say for sure he had written it and although he said it looked like his signature, he had no recollection of writing it. I had no expert evidence presented to me but on the balance of probabilities, I accept that 2006 was not a happy year for the husband and the incidents did occur as the wife claimed. It was disconcerting that the husband had little recollection of the events and of the note. He did not suggest it was a forgery of his signature and he did not attribute the writing of it to the wife. I therefore accept the wife’s version.

The incident in January 2007

There is no dispute that an incident occurred on Australia Day 2007. The precise details of what occurred and who was at fault was very much an issue of contention.
The wife’s version was that there was a barbeque being hosted by a friend of the husband and the husband was not invited. She said he was furious and blamed her for the lack of an invitation. The husband’s version was that they were going to the barbeque and there was an argument the details of which he could not recall. What then happened on any view, was unseemly. The husband said that the wife jumped on him and started to rip his t-shirt, scratching him in the process. He said he had to hold her back and he pushed her onto the couch. He said she threw a cordless telephone handset at him which destroyed the handset. This incident occurred in the presence of the child.
The wife’s version was that he screamed at her and grabbed her by the chin forcing her to look at him. She said he banged on the door, tore his t-shirt, spat on the ground and rolled on the floor taking his shoes off and commenced to hit himself on the head. The child according to the wife, was present and appeared frightened. She said he then ran at her and grabbed her scratching her chest. He then ran to the kitchen and came back with a knife holding it to himself and threatening to kill himself. She said he ran to the child and put his head in her lap and sobbed. According to the wife, the husband then said that he was going to drive very fast and kill himself and for her to look at him for the last time.
It will be seen that the versions of the parties are significantly different. In cross-examination, the husband said that not only was the wife’s version untrue, it was a fabrication of her imagination.
There were no independent witnesses to this event. However, the wife attended at the local Hospital that afternoon. That is, her visit to the hospital was only hours after the argument took place.
Counsel for the husband cross-examined the wife at some length about this visit. It was put to the wife that the child remained with the husband. The wife denied that but I accept that was the case. It was put to the wife that she attended the Hospital at 5.03pm yet the incident occurred around lunchtime. The wife’s plausible explanation for the delay was that she was taken to the hospital by her sister and had been sitting there waiting to see a doctor. As to why the child remained with the husband, she said that she wanted to take the child with her but the husband said “over my dead body”. She confirmed that she had been distressed and her neck hurt and that the treatment provided by the hospital was painkillers. No doubt on instruction, counsel for the husband put to the wife that this was something that she could have arranged for herself. I find that it was more serious than that.
Although it was not in her affidavit, the wife referred to the fact that she had been grabbed by the neck and thrown to the ground. This was another example of the absence of particulars.
Two important facts arise from the wife’s visit to the hospital. First, she is recorded as alleging an assault by the husband. Secondly, the notes show her to be tearful and distressed with “multiple red scratch marks on torso” but her skin was not broken or bruised. The note taker recorded that it was alleged to have been “domestic violence”. In addition, according to the unchallenged notes, the wife said she was going to her sister’s house. That was in fact what happened.
The husband was cross-examined about the hospital records. He said the first he became aware that the wife had consulted a doctor let alone the hospital was when he saw her court material in 2008. His view was that when it was all “put together” the wife’s version was a lie. He had no other plausible explanation as to why the wife would go to the hospital. Hindsight is a wonderful thing and in the course of cross-examination, the husband said it was an argument and they “got physical”. On the husband’s version, the wife returned to the home on 29 January 2007. It is obvious therefore that the argument was serious to such an extent that the wife left the home for some days.
In her affidavit, the wife said that upon her return, the husband had calmed down and he wrote a letter of apology which read:
I have a (sic) anger problem. On 26 Jan in fit of anger and inspite (sic) of absolutely no provocation on her part…I rushed towards her and caught her throat and hit her. I am very sorry. I will never do it again. I am…further sorry and embarrassed that this occurred in front of my daughter. I am sorry.
This particular letter has a signature which certainly bears the resemblance of that of the husband.
The wife said that the husband was apologetic when she returned to the home. The husband agreed he wrote the letter but it was because the wife had received legal advice and told him that he had to “acknowledge” that he was in the wrong. His view was that the note was necessary because otherwise the argument was going to go on indefinitely. Under cross-examination, the husband varied that to having written it under “total duress – and that he was forced” to write it like there was “a gun” to his head.
I accept that different words have different meanings to different people but rather than signing the letter out of some form of resignation as the husband claimed in his affidavit, his evidence under cross-examination was much more vivid.
Combined with the reasonably contemporaneous hospital visit, the absence of the wife over the ensuing days and the acknowledgment in the letter, on balance I accept the version of the wife.

The October 2008 incident

In October 2008, the parties separated for the final time. What led up to it though was another matter of contention.
The wife’s version was that the husband became abusive and went to where S was sitting at a child’s table. She said he picked up the table whilst the child was having her meal and threw it in the air. She said the child was crying and frightened and rushed towards her. She said the husband then ran into the kitchen to pick up a knife and she rang the police whereupon he immediately calmed down, hid the knife and started cleaning up the mess. The police then arrived. The husband’s version was that this was the day after the child’s Holy Communion. The wife and the child arrived home at 3.30pm and the husband had not been at work. Subsequently, an argument commenced between the husband and the wife during the course of which, the wife was critical of a gift bought by the husband’s mother. The husband said that the wife then began generally belittling and insulting his mother. He said he had then told the wife to stop the argument but she continued and he said words to the effect that she was intentionally upsetting him and he wished he was dead and stormed out of the living room. As he did so, he said he accidently kicked or knocked over the small table used by the child upon which food had been left.

Little is in dispute between the parties but the husband maintained that he did not go to the kitchen at all and certainly did not have a knife. Because of the evidence to which I shall later refer from the man who collected him later in the evening, I accept the wife’s version of what occurred.
Upon the police arriving, the husband was told he needed to go to the hospital for a psychiatric assessment. He attributed the idea of his requiring a psychiatric assessment to his wife. He believed she had convinced the police that he needed help and she should know because she was a medical professional. The husband produced the hospital records of his visit including the form completed by the police officer who took him there. There is no dispute that the husband was taken away in the presence of the child. The husband described the event as humiliating. Whilst that may be so, it must be said that the child would have been shocked and frightened particularly with the presence of the police. The husband spoke to the wife of his friend before the police arrived and to her evidence, I shall refer below.
At the hospital presumably because he was in custody of the police, the officer, Senior Constable A wrote:
Police contacted by [the] wife who stated he was threatening to commit suicide with a knife in front of her and their 9 year old daughter.
The police officer was asked to describe the features of appearance and behaviour which led to the assessment and he wrote:
[Husband] located in backyard of (the home) on the phone. Stated to police that he is serious in wanting to end his life, not willing to disclose reasons to police for wanting to commit suicide – marriage issues.
The first of the two statements above could clearly indicate that the police officer was simply repeating what the wife told him. However there can be no other inference drawn from the second statement other than the fact that the policeman was told by the husband of his intention. In addition, the pertinent observation of the police officer was that there were marriage issues.
Counsel for the wife probed the husband at great length in relation to this issue. He was asked sequentially what occurred leading up to the argument and rather succinctly described it as follows:
I have taken a lot of crap during those few days and then (she) dragged my parents into it.
The husband was cross-examined about the records of the hospital and it was put to him that his view was that Senior Constable A was in error in the description he had given. He said that he absolutely remembered that he did not say things along those lines. As for how the hospital records recorded matters, he said that they were “accessed by a doctor in the [N Clinic] at which the wife worked to build a case”. How that could have occurred was never explored but it seems implausible.
The husband was asked about the doctor’s notes which described the relationship as a “conflictual marriage”. Whilst these may very well have been the words of the doctor, the husband was adamant that he would not have used that sort of language.
The husband was assessed by the medical staff. The staff found no psychiatric issues but clearly a marital conflict and they saw no reason to have any follow up. The notes of the hospital recorded that a suggestion was made that the husband consider Relationships Australia to assist in strategies to deal with frustration and anger that erupted in conversations and communications with the wife. The wife had not attended the hospital that night so the details could only have come from the husband. I reject any suggestion that the records were constructed or tampered with in any way. There is no suggestion that the hospital conspired with the wife to paint a picture other than the reality that the notes suggest.
The combination of the records produced by the husband himself and the evidence of Mr R to which I shall refer below make it clear that on the balance of probabilities, the wife’s version of what occurred that night is more plausible. I find therefore that the husband did go into the kitchen and obtain a knife and threatened to kill himself.
Whether the husband intended to carry out his threat is doubtful. Whether the husband said these things simply out of frustration also matters little because they were said to the wife and in the presence of the child. The husband’s witness Mr R, whilst accepting that the husband would not have committed suicide, made statements along the lines of those suggested by the wife.
After the husband was discharged from the hospital, the husband spoke to Mr R who collected him and drove him home. The child did not appear distressed when she saw her father. Perhaps she had been desensitised.

The separation

After being returned home by his friend, the impression created by the husband was that things remained calm. Some days later, he was removed by the police and has since remained away from the family home. The wife’s version of those days was equally unenlightening until she was cross-examined. A cursory reading of her trial affidavit would suggest that some days after returning from the hospital, the husband entered her private space and that triggered a request to issue an intervention order.
When the wife was cross-examined, she gave a much greater detailed version of what occurred. She said on each day in the intervening week after returning from the hospital, the husband harangued her and also the child about retracting any complaint to the police. She said he stood in front of both she and the child and would not allow them to go out of the house. The difficulty I have with that evidence is that she subsequently acknowledged that she went to work each day and the child went to school. Meals were cooked as usual but it was apparent that there was an uneasy calm. At the end of the week, the wife rang a psychologist to get an appointment for someone to see the child. She did not tell the husband about that. That is probably not surprising having regard to the state of their communication.
An important piece of evidence that was not in her affidavit was that on 18 October 2008, she left the child in the home and went to work. There, she said she could not attend to patients and her “boss” spoke to her about the problems at home as a consequence of which, her “boss” took her to the N police station. There, she made a complaint to a police officer who then became the applicant for an intervention order. That complaint certainly made reference to what had given rise to the hospitalisation visit by the husband but had also mentioned that the husband was wanting her to speak to the police to retract her complaint. The police then instituted an application for an intervention order and the husband was quickly removed from the home.
As none of this evidence had been presented to the Court, I did not have the advantage of knowing whether the husband agreed or not. I give it very little weight but the important evidence relating to family violence concerns the incident that gave rise to the husband being taken to the hospital for the psychiatric examination. From a parenting perspective however, the removal of the husband would have had a dramatic impact upon the child. Even allowing for the fact that the child had been exposed to the sorts of violence to which the wife referred, I have the evidence from Mr R that the child hugged her father when brought home from the hospital. I have evidence that during the subsequent supervised contact periods, the child related well to the husband. I also have the evidence of Mr P that the child’s relationship with her father was good. In those circumstances, I have no hesitation in finding that the child would have been affected by the sudden separation from her father.
I have earlier dealt with the unsatisfactory of the wife’s evidence but have attributed that to the way the evidence was drawn. Another example of the problem created by the drafting was that in her affidavit filed in December 2008 for interim orders, she described the difficulty she was having with the husband coming from the fact that she and the husband came from a different “caste”. When cross-examined about that, she was adamant that she meant “class”. It is quite clear in reading the affidavit for the December 2008 hearing that she did use the word “caste”. In her trial affidavit sworn in February 2010, she used the word “class”. She seemed perplexed in cross-examination about the problem because she said that both she and the husband were distant cousins and as such, there was no “caste” issue. She said that the difference was still pertinent because of the fact that she and the husband came from different suburbs. She said the suburb that she grew up in was treated as less significant and that it was a cause of embarrassment to the husband. She said as such, there was a difference in the “class” of she and the husband. I watched closely how she reacted to the cross-examination and am satisfied that the use of the word “caste” was not intended and perhaps may have been a misunderstanding in the instructions she gave albeit that she is an intelligent woman who clearly swore the affidavit in that form. However, for the purposes of the order I make, the issue may have had some historical significance but it does not affect the orders.
Another issue of serious concern was that in her affidavit, the wife gave vivid details of an incident in which the stillborn child J was delivered. In reality, it was a miscarriage. When questioned as to why the paragraph was in the affidavit, the wife was unable to give a plausible explanation. It certainly did not affect any parenting issue and it was not suggested that it went to some issue of family violence. That evidence was a distraction and the wife was at pains to point out that she was pregnant again within weeks with S. There will clearly be cases in which evidence of this nature is relevant to parental responsibility as affected by family violence but matters should not be placed in affidavits just for their historical context. An affidavit is the evidence by which particular issues are proved. It is puzzling to know what was intended to be conveyed. In this case, I give that evidence no weight.

The husband’s role as a parent

A very significant dispute occurred between the parties as to who was the person predominantly responsible for the care of the child from birth. In 1999 when the child was just on 10 months old, the husband was caring for her when she fell from a high chair. The wife was not present. When the wife arrived home, she said she knew something was wrong and drove the child to hospital where she was diagnosed with a fractured skull. In his early material, the husband said he drove the child to the hospital but I accept that that was not so.
Accidents with children do happen and there is no suggestion that the husband did anything to deliberately harm the child or that he would do so now. The evidence however highlights the fragile physical nature of young children and such an incident should have ensured that being so precious, the child would thereafter have been excluded from any sort of risk whether it be physical or otherwise. In this case, quite the contrary, the conflict with the wife, the threats to kill himself and the October separation incident indicate that the husband has a focus more on his own needs than those of the child.
In respect of daily activities, soon after the child was born, the wife returned to work as a medical professional in the evening and on weekends. The child spent time in day care. The husband said that in the evenings, he did all of the activities including feeding and putting her to bed. The wife denied that because the only time she worked anything other than daytime was for a modest number of months from July 1999 to July 2000. She said that during that period, her sister resided with her and cared for the child in her absence. She said she did not work on Saturdays until October 2007. After that date, the wife conceded that the husband did look after the child “at times”.
Thus in the very early days of the child’s life, I find that the wife was the person predominantly responsible for her daily care despite the fact that the wife was working during that period of time.
The husband said that in August 2001, the wife commenced her current position of employment but I accept the wife’s version that the Saturdays only began in October 2007. As the wife has been generally right about dates having regard to records kept, I accept her version about who cared for the child.
The husband said that because of his employment hours, he was able to take the child to school but it was the wife who insisted that she do so.
The parties could not even agree on who was taking the child to tennis lessons. The husband said that the child commenced tennis lessons on Saturday mornings when she was four years of age. That was obviously 2003. The wife said she took the child for those lessons up until she commenced working on Saturdays in October 2007. Thereafter, the wife said that the husband was responsible. Again for reasons to which I have already referred about the wife’s access to dates, it seems to me that the wife’s evidence is more plausible. I accept that it was the wife who was therefore responsible for the tennis lessons up until October 2007.
The husband also asserted that he frequently took the child to piano lessons on Sundays but the wife’s version was that that never occurred nor did it occur in relation to swimming lessons or her Kumon study program. One of these parties cannot be being truthful. Having regard to the logic I have used above, I find on the balance of probabilities that the wife’s version is right.
The husband conceded that the wife attended to the majority of cooking tasks but that he attended to a greater share of other domestic chores. That too was denied by the wife who claimed she did them. Nothing turns on these matters in respect of the parenting dispute but as a matter of my finding, I accept the evidence of the wife.
One matter that the husband wanted me to accept as indicative of the fact that the relationship between husband and wife was not as bad as the wife was portraying whilst at the same time indicating that his relationship with the child was good was whilst he was away in April 2007 on a sporting trip overseas he received an email from the wife setting out in some detail about what was happening in the child’s life. It was not only an amicable but what might otherwise be described as normal parental communication. The dilemma arose however because the wife denied she sent it. Only one or other of the parties could have created such vivid detail in the email. When challenged about why she said that the husband might do that, she said that he had her email passwords. This incident was rather odd but what convinces me that the wife’s version was right is the matter to which I now turn.
Subsequent to separation, the husband had regular appointments with psychologist Ms BH whose evidence I shall refer to in a moment. Ms BH gave evidence that the husband took a mobile telephone call from the wife during one of her consultations with him and her observation was that they were quite amicable. There is nothing unusual about that telephone call other than perhaps that it was odd that the husband’s telephone should be on at all, save that the wife indicated that she telephoned the husband the day before and he arranged for her to ring him at the particular time the following day when he would speak with her. That related to financial matters and the call was at the precise time that he was with Ms BH. I do not find that to have been coincidental. The wife said that he could not speak to her on the day before and hence had made an arrangement for the following day. That seems to me to be an extraordinarily long period of time to wait for a conversation. In addition, the husband knew at that time that he had the appointment on the following day with Ms BH. Important also is the fact that Ms BH described the conversation as civil and that seems to me to be inconsistent with the way in which the parties had spoken to each other subsequent to separation. In the circumstances, I accept the wife’s version of the evidence.

The respective relationships between the child and the parents

The husband described his relationship with the child during the time prior to separation as active, involved and loving. He said that that had been limited since separation particularly having regard to the fact that in the initial stages, his time with the child was supervised. The wife did not dispute that the husband had such a relationship but that must also be seen in the context of the dispute between the parents which the child clearly witnessed. The child told psychologist Mr P that both parents were “pretty good” to her. She described feeling safe and secure with her father and there was mutual love but her preference was for her mother’s home over that of her father.

The incident in the Hospital car park

A very unpleasant incident occurred in a Hospital car park in November 2009.
The child was quite ill and the initial diagnosis was that she may have to be operated upon. She was admitted to hospital only to be discharged the following morning and told to return the next day for further observation.
As the wife was driving away from the hospital but still in the car park, she met the husband on foot. The wife said that she and the child got out of the car and the child greeted her father. According to the wife, the husband’s response was to berate the wife because she had not told him that the child was to be discharged. She described the husband as angry. This anger was in the form of yelling in his native Indian language. All of this occurred in the presence of the child. According to the wife, the child vomited.
The husband’s version was that the child came over to him and told him she had been discharged. He said he “called” the wife over and was “slightly annoyed and disappointed” because she had not told him that the child was to be discharged. He said the wife then told him that he could have been there early in the morning and found out for himself.
Having had the opportunity to observe all of the parties in this case, I accept the wife’s version.
A more significant version however arising out of that was the view taken by the child. The child told Mr P that her father was not screaming but he was a bit anxious. The wife was cross-examined about the disparity between the positions and particularly asked why the child might have adopted such a low key approach to the facts. She described the child as having been attuned to this sort of behaviour in the past and therefore was not troubled about it. I find this rather telling because it is indicative of the fact that the child does accept that her parents are in conflict and that she becomes nervous when they are within close proximity of one another.

The husband’s witnesses

Mrs R

Mrs R is an accountant who was called to give evidence by the husband. She has known him since 1992 and described herself as a close friend who socialised with both the husband and his wife. She was at one point a close friend of the wife to such an extent as to ask her to be her own daughter’s godmother.
Mrs R said that the husband and the wife and the child had been on holidays with her family and their children had played at each other’s home. She said that she sometimes saw the wife at the local Catholic church but had not had social contact with her since separation in October 2008. It appeared however that it was more than just the breakdown of the marriage between the husband and the wife. Mrs R said there was a situation concerning her own father as a consequence of which the wife refused to talk to her. There was no falling out between them as such it is just that they did not speak to each other. Mrs R said that the wife just did not wish to maintain contact with her.

Mrs R noticed in the early part of the marriage of the husband and the wife about the work habits of the wife and how the husband was alone caring for the child. She had no concerns about the husband’s care of the child and thought him a capable and competent parent. She also noticed the husband and the child interacting with each other and they seemed loving, happy and affectionate with each other and in each other’s company. She considered the husband to be a good parent to the child.
Mrs R did not refer in the affidavit material to the incident that occurred between the husband and the wife in October 2008. That was an important event because apart from bringing about the end of the relationship, it gave rise to an absence of the wife from the life of Mrs R. Mrs R gave evidence about her telephone conversation with the husband on the night of 13 October 2008 brushing it aside as being one in which there was a “situation at his place where the police were called and he was asked to leave”. Whilst time might have dimmed memories, this was not such an event that would have been that simply dismissed. At best, Mrs R said she was shocked but that appeared to be more about the wife’s conduct than that of the breakdown of the marriage. Mrs R’s evidence did little to assist me.

Mr R

Mr R gave evidence for the husband. He is the husband of the witness to whom I have just referred. He confirmed his wife’s evidence to be true.
Mr R said that he had discussions with the parties jointly as well as individually to try and assist them in resolving their marital issues. It was clear to Mr R therefore that the marriage had “issues”. In the course of those discussions, Mr R said that the wife blamed the husband and his family for the miscarriage in 1998, that the husband had made statements or “threats as she perceived them” to kill himself which she found difficult to deal with as well as very stressful. Mr R said that the wife also confirmed that the husband had never threatened to physically harm her or the child during their disputes and that the wife was not in any way fearful of the husband on 13 October 2008. In relation to the evidence given by the wife about threats or pressure applied to her by the husband to resume their marriage relationship, Mr R said that he did not recall any of the statements that the wife referred to in her evidence. However, he conceded that he was not sure about where the conversation took place involving the wife other than that it was in a car. His recollection was that he suggested that the husband and the wife “bat out” the marriage for the sake of the child.
Mr R confirmed the wife complained about the husband threatening to kill himself as he had said in his affidavit and also she complained that the husband was mentally torturing her but as at 2002, the threat had only occurred once.
Mr R also confirmed when cross-examined that he had discussed matters with the husband who agreed that he had threatened to kill himself. Perhaps unfortunately, no reference was made of that in the affidavit of Mr R. As such, the less-attractive side of the husband’s personality was ignored by Mr R. Mr R explained that by saying that he did not accept the husband would commit suicide but her certainly knew the wife thought that to be the case.
Very significantly, Mr R conceded the husband had threatened to kill himself in the October incident and he should know because it was he who drove the husband home from the medical centre after his release. As to why it did not take prominence in the affidavit, Mr R said he did not see the relevance of it. Mr R must therefore be seen to a large degree as a very partisan witness. As to what did occur, Mr R could only give evidence about what he was told by the husband. His perception was that the husband “lost his cool” and “threatened to kill himself”. Mr R was sufficiently familiar with the husband to be able to say that the threat related to suicide by a knife but he said when the husband got upset he simply lost his cool.
Mr R’s approach to resolving the dilemma was to suggest that the parties needed counselling. In reality, he had no real criticisms of the wife. Partisan though Mr R was, his evidence was frankly disarming about the husband’s behaviour. In respect of that, I accept he was truthful.

Mrs R

Mrs R was called to give evidence about her role in 2009 as the supervisor of the husband’s time with the child. Mrs R was not entirely happy with the way the wife was using her to pass on messages during that period of time. That was a role that Mrs R was not hers to fulfil. It does however indicate how dysfunctional the relationship was after the separation between the husband and the wife.

The evidence of Mr PR

Mr PR was called to give evidence on behalf of the husband because he had been told of an incident sworn to by the wife that he was present at an incident in which the wife said she was pressured to return home after separating from the husband earlier in the marriage. Mr PR said that what the wife said was untrue. The best evidence he could otherwise give about the state of the relationship between the husband and the wife before separation was that the wife “nagged” the husband. He otherwise knew little “detail”.
Albeit he was a friend of the husband, Mr PR said that his conversations after separation with the husband were not about the marriage. This evidence does little to assist me.

The evidence of Mr D

Mr D said he was a good friend of the husband and the wife but had known the husband for 40 years. His interaction with the parties up until October 2008 was social. He and his wife assisted in the period subsequent to separation. He said he was aware of the problems in the marriage and suggested to both that they should go to counselling. He was aware of what he called “two sides” of the story but he did not talk to the husband about the wife’s version. This evidence did not shed any light on the various aspects of the dispute between the husband and the wife.

The evidence of Mr Y

Mr Y gave evidence. He is the accountant to both parties. He has an apparent personal acquaintanceship with them as well.
Mr Y was called because of the inaccuracy of the wife’s evidence about her income and earnings. He said the details about the wife’s income as shown in the draft tax return for the year ended 30 June 2009 were a mistake. By obvious inference, he meant it was the wife’s mistake because in answering questions I put to him, he said he and his office simply prepared the BAS statements and in turn, the tax returns, from information provided by the wife. The information previously had been provided by email but after separation, it was in handwritten form.
Having heard the evidence of the wife and seeing how she dealt with financial matters, I am satisfied it was a mistake. That view is fortified by the wife’s own evidence that she had wanted to have some involvement in the preparation of accounting figures on a monthly basis but the husband would not permit her.
The wife’s error in choosing the net earnings rather than the gross earnings figure from her revenue as a medical professional was therefore understandable.
Mr Y was at pains to point out that he and his firm simply replicated what their client had provided them as core information. He said it was not his responsibility to query why there was any significant departure from previous quarters or years. I have grave reservations about that on the basis that if correct, one wonders why professionals are advisers. In reality, little, if any, checking was undertaken and the figures were simply put together. The wife on the other hand made clear and I accept, she relied upon her advisers. Core information is therefore critical to the relationship of professional and client. Some step should have been included to ensure the information was correct. Mr Y dismissed the problem as not significant because it was only a draft tax return. That evidence failed to understand the wider use to which the information in this case was put.

The evidence of Ms U

Ms U was called to give evidence by the wife. That evidence related predominantly to the period after 2004. She said that when she discussed matters about her own close family, she often saw the wife in tears. She said the wife confided in her that her relationship was not happy and that the parties slept apart. She said that the wife struck her as a very scared and subdued person who was trying to bring up the child on her own and was constantly under pressure.
Ms U’s observations might be seen to have encroached on the area of the expertise of a psychologist. In reality as it became apparent in cross-examination, there was justification for me to accept her observations because she has a Masters Degree in psychology. Ms U saw the wife in tears and heard her confirmation of being in an unhappy relationship. That corroborates the wife’s view about the state of the relationship.

The evidence of Ms V

Ms V is the wife’s sister. She came from India and lived with the parties from November 1999 until January 2001. Concerning that period, Ms V corroborated the evidence given by the wife. That is largely irrelevant to the outcome of these proceedings having regard to how long ago it was. She said however, and I accept, the wife drove the child to the hospital in December 1999 and not the husband. This was the incident in which the child fell from a high chair and fractured her skull. That evidence damages the credibility of the husband albeit was so long ago.
Ms V said that on several instances the wife told her that the husband had frightened her and threatened to kill himself. She said that when she was at the home, she had witnessed the husband kicking the wife, pulling her hair and waking her as she dozed on the couch after coming home from work. Whilst vague about the details, they had a ring of reality about them.
Ms V gave evidence that in 2002, her sister spent two weeks with her having left the husband. She said that the husband came to her home with his friend Mr R and threatened the wife that he would go to the police and make a complaint against her father as a consequence of which, the wife returned home.
The evidence about the incident in 2002 is a difficult one because Ms V’s evidence clashes with that of Mr R. There were many things that happened in this turbulent marriage and it is conceivable that memories of precise (and at the time unimportant) details of events have become either blurred or simply, the evidence is a reconstruction. On balance, I accept the evidence of Mr R about that event. That issue aside, Ms V’s evidence was limited to corroborating the wife’s evidence that her family was unwelcome in the wife’s house because of the views of the husband. I accept that evidence.

The evidence of Ms BH

Ms BH is a counselling psychologist and family therapist who has worked with the husband since June 2009 upon a recommendation of psychologist Mr P that the husband would benefit from such assistance. Ms BH knew of Mr P and regarded him highly.
Ms BH is a member of the Australian Psychological Society and registered under the Psychologists Registration Act (2000) (Vic) although she described it otherwise. She holds qualifications in counselling psychology with a Master of Arts degree conferred in 1995.
Although her letter of instructions from the solicitor for the husband said she was to read a variety of reports including an issues assessment by family consultant Ms L and a psychiatric report of Dr E, Ms GH could only recall reading reports of psychologist Mr P.
Ms BH wrote a number of reports about the husband. In August 2009, she reported to the husband’s solicitor and ultimately by her affidavit, to this Court that the husband spent time talking about the child and admitted that both he and his wife were responsible for exposing the child to some “bad behaviours” though he said neither of them did so deliberately. She said the husband told her that because of the wife’s profession as a medical professional, she was able to do things to make him look bad just by the way she expressed herself. It must be remembered that this was very early in the therapy undertaken by Ms BH.
By November, Ms BH had seen the husband on a number of further occasions. She wrote that the husband told her that he would never cast “aspersions” about the wife’s capacity as a mother but he experienced her as “inconsistent, suspicious, paranoid and an individual prone to over-analysis of situations”. Having reported the views of the husband, Ms BH said that he had attended therapy regularly and though many of the issues discussed had been challenging and highly emotive, she thought he had gained a great deal from the process. He had gained a great deal in terms of “venting his feelings” and learning how to productively manage uncomfortable feelings like anger, frustration, disappointment and embarrassment. She said over time, he asked more insightful and self-aware questions about his family, the dynamics thereof and the affects of the current situation on his daughter. The picture portrayed to that point was that the husband had acknowledged that he had contributed to the problems and had insight into the impact of his behaviour on the child and the need to change.
In January 2010, Ms BH wrote a comprehensive overview of what she saw she had achieved with the husband. She had the December report of Mr P at that stage. She said that Mr P’s report demonstrated that changes had been made by the husband and that the husband had reached a stage where he attended therapy on an “as needs” basis.
Ms BH said that Mr P had concluded that the parties were less in conflict and that the husband had learned new strategies for managing difficult situations. It was hard to get a sense of what she meant. She conceded that her conclusion came from a statement by Mr P to which she added her own view. It is clear from reading the report of Mr P that he was talking about how the child saw things rather than his own conclusion or perception.
Ms BH then said that in terms of the progress that the husband had made as a result of the therapy, the husband’s defensive perspective had changed over time. She said he was able to discuss the problems that had occurred and acknowledged that it was his view that the immigration process had changed his former wife and that he felt compassion for her. This was a reference to the wife having come to Australia as well as her family at various stages from India. That however occurred early in the relationship.
Ms BH said that the husband was more mindful of the need to take responsibility for his behaviour and its effect upon the child. She said this involved his developing and expressing a great deal of insight and psychological awareness of how children grew and functioned. She said he had learned positive coping strategies to manage uncomfortable emotions. Ultimately she concluded that in respect of communication, there was still conflict between the husband and the wife. Ms BH thought that the husband presented in an honest fashion and was able to talk about what he had done but she conceded she had not heard from the husband about any reference to a knife. Initially, Ms BH said that the husband told her that he had said he would kill himself on many occasions but she subsequently indicated that she had not said that. I took it to mean that she believed the husband had not said that.
Ms BH gave some thought to the meaning behind the husband’s statements. She acknowledged that the reaction of the child to his behaviour was not something that he thought about at the time the incidents were occurring. Thus, her view was that for a parent to behave badly in front of a child was something which could be controlled and avoided but in this case, the husband was acknowledging that he had failed to do that. Ms BH was asked whether the husband was manipulating the child and candidly she acknowledged that whichever way one looked at it, his behaviour was inexcusable.
It was hard to get a sense from Ms BH’s reports why she was treating the husband. When asked about that she said it arose because of his family issues and his bad behaviour towards the family. Bad behaviour according to Ms BH was yelling, pushing and making threats to kill himself. In the view of Ms BH, from what she was told, both parties were at fault. Those problems arose because the husband felt that he was being pushed by the wife whose standards were very high and he had difficulty meeting the standards. His failure to meet the standards made him feel punished. She said that his reaction was that their social life altered and that affected him. She said when he was out of work, he felt he was made to feel hopeless albeit that that was only for a short period of a month. It was also a stressful environment with family members staying for up to a year.
There was a significant discussion by Ms BH about the husband’s desire for a shared parenting arrangement. Ms BH agreed that she had discussed the subject with the husband and said that such an arrangement would be challenging by which she meant it would be difficult. She conceded that she had discussed with the husband how difficult shared care would be without much better communication.
Ms BH’s evidence was helpful in that while she recognised she could only work with the history she was given, there were traits in the husband that she acknowledged as a problem. Whether those problems have gone too far to be remedied is the issue before me. Ms BH opined that the impact of unresolved issues as between the husband and the wife on the child was significant. One such manifestation of the problem was that the child would “edit” her conversations with her parents because she knew there were subjects she could not or would not raise. That was unhealthy. Whilst counselling might resolve the problems as between the husband and the wife, it would be a slow process according to Ms BH where there was no communication or willingness to resume any form of parenting relationship. That comment was made in the context of the husband being willing to start again and communicate with his wife but she being resistant. If the Court was to make an order for shared care, the lack of communication and the “editing” would make it likely that the child would have difficulties.
Ms BH had been given a limited history of the family violence I have found existed and for which the husband must largely take responsibility. As such, Ms BH’s optimism for an early end to parental hostilities with counselling would be unlikely. Similarly, whilst the husband had gained insight into his involvement in the problem, he had to produce some plausible evidence that would entice the wife to begin treating him as an equal parent. Ms BH conceded that that would not happen quickly. Shared care as pursued by the husband would not therefore be in the child’s best interest.

The evidence of Mr P

Mr P is a psychologist whose qualifications were not disputed. He has extensive experience in psychology and in giving evidence in this Court.
Mr P prepared a report for the proceedings in May 2009 at which time he had the benefit of not only speaking to the child and the parties but also had a report from psychiatrist Dr E.
Mr P concluded in 2009 that each implicated the behaviour of the other as the cause of the difficult relationship.
Mr P said in May 2009 that whilst the factual dispute required a testing of the evidence, what was significant was that the child spoke openly and directly about her concerns to do with her father’s behaviour, his physical outbursts, his anger, his aggression, his threats to take his own life and his manipulation. Importantly, Mr P described the child as having a healthy detachment from the concerns whilst troubled about her father’s behaviour. He said that whilst the husband was adamant in his denials, the child was “spontaneous” in her description. It must be remembered that this report and more importantly, the conversation between Mr P and the child took place only months after the separation occurred.

Having said that, I have also taken into account the restrictions that have been imposed by the Court upon the husband as a result of what happened in October 2008.
Section 60CG(1) requires that a court must ensure that any order it makes is consistent with any family violence order and does not expose either a parent or a child to an unacceptable risk of family violence. I have considered all of those matters in the proposed orders that I intend to make.
On the basis of the evidence therefore, I could not find it was in the best interests of the child to spend time with her parents on a week-about basis nor could I find that her view that the current regime continue should be followed. In the same way, I have to consider what best meets her future needs.
Counsel for the Independent Children’s Lawyer in final address said that moving to the position recommended by Mr P was a big step. I agree. But Mr P was of the view also that the child would cope. I am encouraged by the fact that the evidence shows her mother was preparing her for an increase in time. In addition, all parties agreed that they would abide by the decision of the Court. If there was consensus about a better proposal in the future, they could implement it. At the moment they cannot agree on anything.
Before looking at precisely what parenting orders should be made however, s 61DA(1) requires that when making a parenting order the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility.
That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. I have found that the husband has been the perpetrator of family violence and as such, the presumption is rebutted. Section 61DA(2) is a mandatory provision. That does not mean that the parents cannot still agree on equal shared parental responsibility. That is what has happened here.
Section 61DA(4) is a discretionary provision. It provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared responsibility. To some extent, it would be illogical for the parties to jointly ask the Court as here, for an order for equal shared parental responsibility yet for the Court to then find that it is not in the best interests of a child for that order to be made. Equal shared parental responsibility is not defined in the Act.
Parental responsibility is defined in the Act to mean all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. (See s 61B).
A parenting order does not take away or diminish any aspect of parental responsibility of a parent unless the order expressly provides for that. If the order makes no reference to specific aspects of parental responsibility, the parents continue to have equal shared parental responsibility. Section 65DAC provides that if under an order, the parents are to share parental responsibility relating to major long term issues, the decision has to be made jointly by the parents. That is, the order is taken to require the parties to consult with each other and to make a genuine effort to come to a joint decision. That consultation process does not apply to issues that are not of a major long term nature. (See s 65DAE). The phrase “major long-term issues” is defined by the Act (s 4) to include issues about the care, welfare and development of a child. A variety of examples is given in the Act such as education, religion, cultural upbringing, health and the naming of a child. Those are only examples and accordingly, in each case, the focus must be on the words “care, welfare and development” in the description of parental responsibility. The Act is clear in its requirement of consultation about those duties and responsibilities. It goes without saying also that because parental responsibility continues until the child becomes an adult, the Court needs to contemplate whether the current inability to consult is something that might change. The Court has an obligation to encourage counselling or therapy so that the consultation process can be achieved to meet the objects and principles as I earlier set out.
Despite reservations about the capacity and the willingness of the husband and wife to consult about the child’s interest, there have been rare occasions when that consultation process has occurred. Each agreed reluctantly to communicate about important long term issues for the child.
Because the parents have sought an order for equal shared parental responsibility, the provisions of s 65DAA(1) apply. The requirements to consider s 65DAA(1) and (2) are mandatory. I say that I have considered whether the child spending equal time with her parents would be in her best interests and find that it would not.
I also say that I have considered whether it is reasonably practicable for the child to spend equal time with her parents and find that it is not. Whilst “reasonably practicable” is not defined in the Act, it must be viewed in the context of each individual case. (See Eddington and Eddington (No 2) (2007) FLC 93-349 at 81,997). Even so, it must mean that what is contemplated is capable of being done or, is feasible. It is therefore not reasonably practicable to expect the child to spend seven days away from her mother as part of her daily routine as distinct from a holiday period. Nor is it reasonably practicable to expect such a parenting venture to work where the child sees her mother’s home as her stable base and where she has a very strongly articulated view that it should stay that way. I have grave doubts about the parents’ current capacity to implement an arrangement for equal time predominantly because the parties cannot communicate with each other and resolve difficulties and I have doubts about their future capacity to do so.
For the purposes of s 65DAA(5), I have had regard to the geographical distance between the parties and find that it is not a problem.
Section 65DAA(2) provides however that if a parenting order provides that the Court does not make an order for equal time, the Court must consider whether the child spending substantial and significant time would be in her best interests. Significant and substantial time is defined to include days that fall on weekends and holidays as well as the converse.
Section 65DAA(2) makes reference to “days”. That is, an order will only satisfy the substantial and significant time test if the time is more than one day. In Eddington (op cit) the Full Court said at 82,000:
Clearly, the amount of time which children spend with a parent potentially impacts upon the quality or significance of that time.
Their Honours went on to say, albeit in relation to the facts of that case, that there was a “nexus between the substance and the significance of the time” which children spend with a parent.
The focus in S’s case is on her daily routine and occasions and events that are of significance to her as well as her father. The evidence is that the child has extra-curriculum activities including lessons for piano, tennis and guitar. She is involved in art classes and has weekly Kumon lessons. The child has activities at school including swimming. These are the things she enjoys. These are the things which are her daily routine in addition to school work. According to the wife, S is a happy child. As such, for the husband to have substantial and significant time, he would need to be involved in those activities or some of them. The child’s routine obviously includes going to school and the winding down that occurs at the conclusion of the school day. It involves dealing with projects and research activities arising from school obligations. If the husband has time with the child from Friday through to Monday, he could not do many of those activities. If he had from Thursday through to Monday, he could. I accept he could not do all but he certainly could do some. In my view, the intention of the section was to allow him to participate in the child’s routine. Those activities would normally be discussed as things falling within parental responsibility. Thus, substantial and significant time means being able to participate in the duties and responsibilities which by law parents have and particularly those exercisable outside of weekends and holidays. If the husband does that, is it in S’s best interests. On the evidence of Mr P, I find it is.
Is this substantial and significant time reasonably practicable? Having regard to what I earlier said, it must be viewed with the same questions being posed. Is four days away from her mother, reasonably practicable for the child? I find it is on the evidence of Mr P. How does that time sit with the child’s views? It probably does not because her view is that the time should stay as it is with the rider that she might change it later. Mr P was of the view that the child should not have that control. His view was that time should be increased and I agree. It is therefore reasonably practicable for the husband to have the child from Thursday through to Monday in each alternate week.
Section 65DAA(3) however also requires that for the definition to be satisfied, the time must allow the child to be involved in occasions and events that are of special significance to the parent. There is no evidence of what special activities the husband has during the week. He works as an employee but has flexibility. He was very much focussed on being involved in the child’s activities rather than the other way around. Most parents would do that as part of the working week. If for example, he was in a musical group or attended religious or cultural observances on a weeknight, because they were special to him, one would presume he would involve the child to the extent it did not interfere with her health and schooling. In this case, it was not raised as a concern of the husband. I have therefore presumed that the husband could fit any of his activities around the time that he had with the child if it was from Thursday through to Monday.
In my view, the orders that I propose are therefore to allow the major period of the child’s daily life to be exercised in the care of her mother but that the time spent with her father should be substantial and significant time. Accordingly, the orders I propose are in her best interests.

Property

What was common ground was that I should follow the four step process. I propose to do that.
That is the process set out by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at 78,386 where the Full Court said:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
Before making any assessment, I shall set out the facts as I have found them.
At the commencement of the relationship, the husband had about $15,000 in savings and although he said that the wife did not have any assets when she came to Australia in 1994, I am satisfied that she had $9700 in savings that she brought from India.
The husband’s initial savings went towards the purchase of a property at G. This purchase occurred some nine months after the parties commenced living together in Australia. The purchase price was $135,000 and the savings of the husband went towards the deposit and the balance was borrowed from the National Australia Bank. The wife’s savings enabled the parties to acquire furnishings for the home. I accept the evidence of the wife also that her parents gave her kitchenware and household items that enabled the parties to equip the home. It will be seen therefore that there is little distinction between the parties and their contributions in 1994.
In 1994, the husband was employed as an information technology consultant with a communications company. The wife had been qualified as a medical professional in India but had to complete examinations in Australia to qualify to practice. I am satisfied on the evidence that the wife began her paid professional employment in November 1995. The husband said that she was a student for much longer and indeed, I accept that she was. However, the significant issue is that she was in gainful employment from November 1995 onwards. During that period of approximately 20 months prior to her employment, she was supported by the husband. For part of that period, the husband was obviously the only source of the payment of the mortgage.
In 1997, the husband’s employment with the communications company was terminated and he was paid $47,000 by way of a redundancy. In addition, he received $6621.69 entitlements that he had contributed to superannuation and that sum was rolled into a new fund. The entitlement to the redundancy as well as the superannuation arose out of the husband’s service with the communications company. That service commenced approximately one year prior to the marriage. To that extent, the husband has made a contribution greater than the wife. Just what portion of the $47,000 and the superannuation can be attributable to that pre-marriage period is uncertain because I have no precise evidence. Redundancy payments are intended to protect employees financially whilst they seek new employment and the extent of the entitlement is dependent upon the years of service. It was the husband’s evidence and not disputed by the wife that he commenced employment with a private company established by an acquaintance and that his drawings began immediately. However, the amount that he was paid was modest and he used the redundancy monies to pay household expenses and the mortgage.
The husband’s employment with the company continued until September 2001. He was then unemployed. The husband said that it was for about six months and the wife said it was for a slightly longer period.
When the total taxable incomes of the parties during the marriage are matched, it is correct to say that there is little difference. However, the wife was in a position where she had benefits including salary-sacrificing and more recently, deductions for work purposes and investment property expenses that would suggest her income in real terms was much higher. I find that the parties could not have the equity in the assets that they currently enjoy in the pool of assets without the benefits that the wife had.
In 2003, the parties’ self-managed superannuation fund was set up and that in turn purchased the investment property in T in 2007. The vast majority of the funds that are reflected in the balance sheet of the fund have come from the wife. The husband did deposit $51,000.
Investment properties were acquired in 2005 and 2006 in the name of the wife and hence, the various deductions were in her name. The evidence as to why that occurred would appear to have been for taxation reasons and both parties have benefited by virtue of the equity in the pool of assets now.
The wife was initially on a salary which she sacrificed and the significant portion was paid into the mortgage loan of the home. Loans of the parties for which taxation deductions presumably were made were also paid from the wife’s earnings.
There was considerable debate between the parties as to what happened to the parties’ respective incomes because of the fact that the wife paid the readily identifiable accounts. I accept the husband’s evidence that a variety of expenses were paid on his account. Some of the evidence of both parties focussed on a sporting tour in 2007 undertaken by the husband and organised by one of his friends who was a witness in these proceedings. I am satisfied on the evidence that the amount of money spent was modest and whether the payment was unilateral or not, each party enjoyed the benefits of travel and there was nothing unusual about their expenditure otherwise.
I am satisfied that the wife was the more astute investor and managed her earnings and the assets in her name competently. Having said that, the husband must be given credit for his non-financial contribution in managing the household finances. The wife asserted that she managed the finances but in cross-examination, conceded she was unhappy because the husband would not allow her to do so. She asserted he was controlling and demanded to know what she had done with her money. Be that as it may, the husband made a contribution as a “bookkeeper” in the household. Subsequent to separation, the wife has been paying the mortgage commitment of $662 per month or almost $10,000 up to the commencement of the current year. The husband was asked whether he had made any contributions of a similar nature but he was unable to point to any. Whether he had the capacity to do so or not subsequent to separation is unclear on the evidence but I am satisfied that because of the wife’s capacity to reduce her taxable income via the various structures she had in place, her financial contribution subsequent to the marriage as well as subsequent to separation, was greater than that of the husband.
In terms of the non-financial contributions of the parties, there is little doubt on the evidence that up until separation, the wife was the predominant carer of the child. Although there was considerable dispute between the parties as to who did what household tasks, I am satisfied that they adopted traditional roles in which the wife was responsible for the domestic chores internally and the husband those outside. However, the wife’s non-financial role as a carer of the child subsequent to separation must be seen as a significantly greater contribution than that of the husband having regard to the limited role that he played by virtue of the court orders that were imposed. Imposed or otherwise, the contribution still must be seen as greater than that of the husband.
This case has both superannuation and non-superannuation property interests. The superannuation entitlements of the parties are contained in two funds. The first is a self-managed fund in which both parties have a member account and each interest is significantly different. The second is the husband’s employment-based accumulation fund into which his employer makes fortnightly contributions.
Because of the dissimilar nature of superannuation assets from those of the non-superannuation assets together with the ages of the parties and hence their time to retirement, it is not appropriate to simply have one pool of assets. No argument was raised by either party about that. I will therefore deal with the non-superannuation assets first.
Despite the fact that on the second last and last days of the hearing, counsel prepared what might be described as balance sheets, the disparity in figures was disconcerting. I have taken the figures which follow from the best evidence available. I have used car figures where agreed. I have used furniture figures based on an admission by the wife against interest. I have used the mortgage figures that were most up to date. I have extrapolated the car debt figures assuming that the monthly payments have been made. I have determined the “add back” savings on the basis of the evidence given to me. I have ignored tax refunds on the basis that I cannot determine what portion pre-dates or post-dates the parties’ separation.

I am satisfied that the pool of assets between the parties as at now amounts to the following assets:
B property  $1,300,000
Less mortgage  93,157
Net  $1,206,843
H property  $600,000
Less mortgage  305,250
Net  294,750
M property  $425,000
Less mortgage  259,070
Net  165,930
Husband’s savings at separation
or money taken by him  19,311
MLC investment  112,423
Wife’s car  45,575
Less debt  30,492
Net  15,083
Husband’s car  15,700
Husband’s shares  9,527
Wife’s shares  1,571
Wife’s savings  74,022
Wife’s contents of the home                 7,500
Total  $1,922,660
It would appear that from monies earned by the wife subsequent to separation, she has paid legal fees of approximately $34,000. This amount of money was taken from the savings at separation. As such, there can be no suggestion of any contribution made directly to it by the husband. In the same way, any payments of legal fees made by the husband subsequent to separation are also ignored because they came from income. However, he chose that course rather than contributing to the mortgages. That course of action is therefore to be reflected in the contribution assessment. It must favour the wife.
I find therefore that the pools of assets are:
Non-superannuation assets $1,922,660
Superannuation assets $572,377
I have set out the details about the respective contributions of the parties. I assess the contributions as to 57.5 per cent to the wife and 42.5 per cent to the husband. I do so for the following reasons.
I find that at the commencement of the relationship there was little difference between the parties. Whilst the husband had slightly more money as well as the accrued entitlement to some form of redundancy payment and superannuation contributions, all of those funds were ultimately used for the parties’ assets and living expenses and their respective contributions of a financial and non-financial nature subsequent to the marriage have made them of little significance as a result of time.
Between the commencement of the marriage and separation, I find that the wife’s income was greater than that of the husband in real terms. That too has to be assessed in the light of the husband’s support of the wife for approximately 18 months whilst she established herself to gain the necessary qualifications. Even taking that into account, I am satisfied that the wife’s earnings were greater than those of the husband.
I am also satisfied that the non-financial contributions of the parties during the marriage were much the same albeit it is clear that the wife undertook the greater role of the care of the child. I do not find that that is a significantly distinguishable feature in this case.
Importantly however, subsequent to separation, the wife’s role in the care of the child without any real child support from the husband is a significant feature in her favour. While the husband did make payments for things like the scholarship fund and family health cover, it was his choice to pay his legal fees rather than contribute to mortgages or assist the wife in her daily financial support of the child. I find that the contributions of both a financial and non-financial nature subsequent to separation are greater by the wife. The financial contributions subsequent to separation also relate to the preservation and conservation of the main assets in the pool. Whilst there was no precise evidence, I can take judicial note of the fact that in the period subsequent to separation, the values of real estate in Melbourne have generally risen. Time in this case subsequent to separation has increased the equity of the parties by virtue of the increase in prices but also by virtue of the payments made by the wife through her earnings. On the evidence, the values appear to have increased by approximately $230,000 and the mortgage debt in respect of H property and M property has decreased by $59,000. It must be said that those amount to the increase in equity as a result of the efforts predominantly of the wife.
For those reasons, I find that the percentage adjustments to which I have referred are justified.
The third step in the process requires a court to contemplate the matters set out in s 75(2) of the Act. Those matters are as follows:
(a)      the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)       the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)      a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
I have considered all of the matters in s 75(2) of the Act as it applies to each of the parties. The distinguishing features in this case however are that the wife earns more than the husband does but until now, she has supported the child without financial assistance from the husband in any meaningful way. In addition, the wife has the responsibility for the care of the child and having regard to the parenting orders that I propose to make, will continue to do so in the future. There is a cloud hanging over the wife’s future earning capacity as a result of her health situation although I have little evidence about what that means. On any view whilst her income may be decreased as a result of those matters, there is little doubt that her earning capacity is greater than that of the husband. Be that as it may, the balancing of the factors requires a further adjustment in favour of the wife to the extent of 2.5 per cent.
The fourth step in the process is to ensure that the ultimate percentage division when examined in real value terms is just and equitable. Having regard to the mathematics to which I have referred, I find that the adjustment as to 60 per cent to the wife and 40 per cent to the husband in this case having regard to the size of the pool of assets is just and equitable. That means in this case that the wife retains the home and its debt along with the property at M and the husband retains the property at H and its attendant debt. Minor adjustments need to be made in respect of the other ancillary assets.
In this case, the same contribution factors apply in respect of the superannuation pool of assets. Notwithstanding the clearly greater financial contribution by the wife as can be seen in the sums of money deposited into the fund, I see no reason to isolate those as contributions and the funds should be treated in the same way as the other assets. Whilst the greater financial contribution to the fund during the marriage was made by the wife, she was able to do so because of her taxation benefits and the fact that the husband was contributing to the household support. Subsequent to separation however, the wife made a significant contribution in money terms. Those greater contributions by the wife deserve recognition. Accordingly, I make the same findings in respect of contributions concerning the superannuation funds.
Section 75(2) factors in this case also apply in respect of the superannuation funds and I similarly make an adjustment of 2.5 per cent in favour of the wife. That means a division of the total superannuation entitlements as to 60 per cent to the wife that the underlying values as assessed are just and equitable to both parties. I propose to round off dollar figures because of the fluctuations in equity because of mortgage and superannuation values. Those rounded figures appear in the orders.
I find the outcome is just and equitable.

Costs of the Independent Children’s Lawyer

Counsel for the Independent Children’s Lawyer sought an order for costs in the sum of $9170 against both the husband and the wife.
Section 117(3) of the Act provides that the Court may make an order under the provisions of s 117(2) in such proportion as the Court considers just against the parties.
Section 117(4) provides that that order is not to be made if either of the parties has received legal aid or the Court considers that a party would suffer financial hardship should they have to bear a portion of those costs. That does not apply in this case.
Section 117(3) is still subject to the provisions of s 117(1) and (2).
Section 117(1) provides that each party to proceedings under the Act shall bear his and her own costs. Section 117(2) provides however that if the circumstances justifying it so doing, a court may make an order that one or other of the parties pays costs as the court considers just.
In this case, the parties litigated over six days. The majority of that time related to parenting issues. On a number of occasions, the parties indicated that they could not reach agreement. Their inability to finalise the matter required the delivery of reasons as I have done. Counsel for the Independent Children’s Lawyer said a compromise had been offered along the lines suggested by psychologist Mr P. It would seem the husband could not take that step because he wanted equal time. The wife could not take that step either because she wanted initially for time to remain as it was despite the alternative proposition put by Mr P. In the circumstances where the Independent Children’s Lawyer put a proposition which was not only reasonable but soundly based on material that the parties had, I find that there are circumstances justifying a departure from s 117(1).
Section 117(2A) provides for the matters that must be taken into account when the Court is considering what order is to be made in relation to costs. Those matters include the financial circumstances of each of the parties to the proceedings. Those details are set out in the property matters to which I have referred and it is fair to say that each party is comfortable both in terms of capital and in terms of income. There is no suggestion in this case of non-compliance with court orders. Neither party has been wholly unsuccessful but by the same token, neither has they been entirely successful.
There are no other matters that I consider relevant. However, taking into account all of the issues involved and the reasonableness of the costs in the circumstances, the parties should each pay one half of the Independent Children’s Lawyer’s costs and I propose to so order.

I certify that the preceding Two Hundred and Fifty One (251) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 21 April 2010

[2010] FamCA 306

21 April 2010

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Remedies

Jurisdiction

Procedural Fairness